The Fourteenth Amendment protects parents' fundamental right to participate in the care, custody, and management of their children. Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981). This right extends to parents who, like the plaintiff here, have shared legal custody but lack physical custody of their children. See Brittain v. Hansen, 451 F.3d 982, 992 (9th Cir. 2006). In this case, we are asked to determine the circumstances under which the Fourteenth Amendment requires public officials to inform a parent with only joint legal custody about actions they take involving the parent's child.

Plaintiff Daniel James brought this action under 42 U.S.C. § 1983 alleging that the defendants-two social workers from the Nevada County Child Protective Services Agency ("CPS") and a deputy sheriff-violated his substantive and procedural due process rights under the Fourteenth Amendment by failing to notify him of their investigation into allegations that his daughter, C.J., had been molested and that someone had coerced her to change her testimony in the trial that followed. In addition, James contends that the two social worker defendants violated his rights by failing to inform him of events stemming from the molestation investigation: (1) a decision to detain C.J. temporarily and to take her into protective custody, and (2) a voluntary agreement with C.J.'s mother, who had physical custody, to place C.J. with her maternal grandmother for the duration of the molestation trial. We conclude that the defendants are entitled to qualified immunity on these claims and accordingly affirm the grant of summary judgment.

First, we decline to decide whether James had a constitutional right to be informed of the molestation investigation or of the attempts to coerce C.J. to change her testimony. We conclude that, even if such rights existed, they were not clearly established. We therefore affirm the grant of qualified immunity on these two claims. Second, we hold that the CPS officials violated James's substantive due process right to participate in the care, custody, and management of his daughter by failing to notify him of her detention and placement in temporary protective custody and of the subsequent agreement transferring her physical custody for the duration of the molestation trial. We conclude, however, that James's right to this information was not clearly established and that the officials are therefore entitled to qualified immunity on these claims. Finally, we hold that the CPS officials did not violate James's procedural due process rights and accordingly affirm the grant of qualified immunity on that claim.

I. Background

Daniel James and Gail Sherman are the biological parents of C.J., who was a minor at the time of the events relevant to this case. James and Sherman, who were never married, shared joint legal custody of C.J., but Sherman had sole physical custody. C.J. lived with Sherman and Sherman's live-in boyfriend, Shawn Blair, and James had visitation rights two weekends per month. In late February 2003, C.J. told her maternal grandmother, Nancy Proano, that Blair's father had sexually molested her. Proano reported this to CPS, which, in turn, reported the allegations to the Nevada County Sheriff's Office.

On March 18, 2003, defendant Bobbie Rowlands, a CPS social worker, interviewed C.J. at the Nevada County Sheriff's Office. Defendant Steve Tripp, a Nevada County deputy sheriff who was investigating the matter for the Sheriff's Office, monitored the interview from another room. After the interview, Rowlands told Sherman she had to prevent Blair's father from having any further contact with C.J. Because Sherman agreed to prevent further contact, and because Blair's father did not live in C.J.'s household, CPS did not file a juvenile dependency action to protect C.J. The Nevada County District Attorney later filed criminal charges against Blair's father.

In late July, on the same day as the preliminary examination in Blair's father's criminal case, C.J. told her tutor that Blair had struck her and her mother. C.J.'s step-grandfather, Robert Proano, reported this to Rowlands, who informed Tripp. At Tripp's request, Rowlands referred the matter to the Grass Valley Police Department for investigation because the alleged assault occurred in its jurisdiction. The next day, a Grass Valley police officer who is not a party in this suit interviewed C.J. and her mother about this allegation. C.J. confirmed that Blair had hit her but denied that he had pressured her to change her testimony against his father.

On September 10, 2003, Rowlands learned that C.J. had told her tutor that Blair was pressuring C.J. to change her testimony. The next day, Rowlands interviewed C.J. at her school, and C.J. reported that Blair had told her to change her testimony. At Rowlands's urging, Sherman agreed to let C.J. stay with Proano that night. The next day, a Grass Valley police officer talked to C.J. at school, and she again confirmed that Blair was pressuring her to change her testimony. The officer detained C.J. at school, and a supervising social worker, defendant Vivian Vaught, instructed another social worker to take C.J. into protective custody and to bring her to Proano's home. The social worker told Sherman that CPS had taken C.J. into custody and placed her with Proano.

Three days later, on September 15, 2003, Rowlands met with Sherman and gave her five options for ensuring C.J.'s safety during the molestation trial: make Blair leave the home so that C.J. could remain there; allow C.J. to live with Proano without any CPS involvement; sign a voluntary agreement with CPS to place C.J. with Proano; sign a voluntary agreement to place C.J. in a foster home; or let C.J. live with her father, James. After Sherman refused all options, Vaught intervened. Sherman ultimately agreed to sign a voluntary agreement with CPS transferring C.J.'s physical custody to Proano until the molestation trial was over. CPS did not interrupt James's visitation during this period.

In early December 2003, C.J. told James that Blair's father had molested her. In response, James filed a motion in the Placer County Superior Court seeking physical custody of C.J. On December 12, 2003, in an ex parte proceeding, the court awarded temporary physical custody to James pending a custody hearing. After the custody hearing, in May 2005, the court awarded sole legal and physical custody to Proano.

In February 2005, on the basis of these events, James filed a pro se complaint in the district court against Rowlands, Vaught, and other defendants not named in this case. After James failed to explicitly assert grounds for federal jurisdiction in his response to an order to show cause, the district court dismissed his suit for lack of subject matter jurisdiction.

James then hired an attorney who filed this action in May 2006 against Rowlands, Vaught, and Tripp in the Eastern District of California, seeking damages under § 1983 for violations of his Fourteenth Amendment rights to substantive and procedural due process and to equal protection. The complaint alleged that the defendants violated James's rights by failing to inform him of the molestation investigation. His subsequent filings made clear that he challenged not only the failure to inform him of the investigation, but also the failure to notify him of the reported attempts to coerce C.J. to change her testimony and of the changes in C.J.'s physical custody. The defendants moved for summary judgment on the grounds of qualified immunity and James's alleged failure to comply with the statute of limitations.

The district court granted summary judgment to the defendants on all claims. The district court concluded that the defendants' failure to inform James of the investigation and C.J.'s temporary placement with Proano violated his substantive due process right "to make decisions about the care, custody and control of his daughter." The district court further determined that James's rights were clearly established "on the basis of common sense," but that the defendants were nonetheless entitled to qualified immunity because they made a reasonable mistake about what the law required. In addition, the district court held that the defendants did not violate James's right to procedural due process, and that James did not present enough evidence to raise a triable issue of fact on his equal protection claim. Because the district court granted summary judgment to the defendants on the merits, it did not address whether James's suit was barred by the statute of limitations. James timely appealed, ...

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